Citation Nr: 0844982
Decision Date: 12/31/08 Archive Date: 01/07/09
DOCKET NO. 06-09 344 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for chronic obstructive
pulmonary disease (COPD), to include as due to asbestos
exposure.
2. Entitlement to service connection for asbestosis and/or
asbestos related disease other than COPD.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
A. Ishizawar, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
August 1979 to February 1983. These matters are before the
Board of Veterans' Appeals (Board) on appeal from a May 2004
rating decision of the Portland, Oregon Department of
Veterans Affairs (VA) Regional Office (RO). The veteran
requested a Travel Board hearing. He failed to report on the
date it was scheduled, May 8, 2007. He alleged he was not
timely notified of the hearing, and was rescheduled in
September 2007. He again failed to report (this time not
offering cause).
In August 2008, the Board sought an advisory medical opinion
from the Veterans Health Administration (VHA). In September
2008, the veteran was provided a copy of the opinion and
advised that he had 60 days to submit relevant evidence or
argument in response. See 38 C.F.R. §§ 20.901, 20.903. In
October 2008, he submitted additional argument in response to
the VHA advisory opinion and, in an accompanying statement,
asked that the case be remanded for RO initial review. The
Board finds that inasmuch as the veteran's submission does
not include any additional evidence, but merely consists of
his own argument, returning the matter to the RO for initial
consideration of his submission is not necessary.
The issue of entitlement to service connection for asbestosis
and asbestos-related disease other than COPD is being
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC. VA will notify the veteran if any action
on his part is required.
FINDING OF FACT
COPD was not manifested in service, and the preponderance of
the evidence is against a finding that such disability is
related to the veteran's service or to any event therein, to
include exposure to asbestos.
CONCLUSION OF LAW
Service connection for COPD, to include as due to asbestos
exposure, is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West
2002); 38 C.F.R. § 3.102, 3.303 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA
applies to the instant claim. Upon receipt of a complete or
substantially complete application for benefits, VA is
required to notify the claimant and his representative of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
38 C.F.R. § 3.159(b)(1) (including as amended effective May
30, 2008; 73 Fed. Reg. 23353 (April 30, 2008)). VCAA notice
should be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision on a
claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The veteran was advised of VA's duties to notify and assist
in the development of his claim prior its initial
adjudication. Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006). A March 2004 letter explained the evidence
necessary to substantiate his claim, the evidence VA was
responsible for providing, and the evidence he was
responsible for providing. He has had ample opportunity to
respond/supplement the record, and is not prejudiced by any
technical notice deficiency (including in timing) that may
have occurred earlier in the process. In compliance with
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), a
March 2006 letter informed the veteran of disability rating
and effective date criteria.
The veteran's service treatment records (STRs) are associated
with his claims file, and pertinent treatment records have
been secured. The RO arranged for a VA examination in March
2004. The veteran has not identified any pertinent evidence
that remains outstanding. VA's duty to assist is met.
Accordingly, the Board will address the merits of the claim.
B. Factual Background
The veteran's STRs, including his January 1983 service
separation examination report, are silent for any complaints,
findings, treatment, or diagnosis related to COPD.
The veteran's service personnel records reflect that his
active service included service aboard the USCGC Munro and
USCGC Mellon.
VA outpatient treatment records show that in September 2002,
the veteran was seen for complaints of chest pain and
shortness of breath. These were found to be secondary to
anxiety. In September 2003, he reported using his inhaler
more, wheezing in his sleep, and experiencing shortness of
breath when driving into the city from his rural home; asthma
was diagnosed. In October 2003, he complained of progressive
shortness of breath. A November 2003 chest X-ray revealed
chronic, mild peribronchial thickening; the impression was no
evidence of acute cardiopulmonary disease. A December 2003
pulmonary function test showed moderately severe obstructive
defect without response to inhaled medications.
On March 2004 VA examination, COPD, heavy asbestos exposure,
and diminishing smoking disorder were diagnosed. In the
examiner's opinion, the veteran had "considerably more
obstructive disease than his 40 pack years of smoking would
indicate and his reduction of smoking over the past year has
not seemed to help his respiratory reserves substantially."
In response to the Board's request for a VHA advisory opinion
in this matter, a VA Chief of Pulmonology opined in September
2008 that the proper interpretation of the veteran's December
2003 pulmonary function test was "mild obstructive defect
with no significant bronchodilator response" (and not
moderately severe COPD without a bronchodilator response),
and further opined that it was "highly unlikely that the his
mild obstructive defect, which was observed by spirometry, is
related to asbestos exposure in the Coast Guard. Asbestosis
usually manifests from 25 to 30 years after exposure to
asbestos. Because the veteran has only a mild obstructive
abnormality without concomitant evidence of a restrictive
component, it is highly unlikely that asbestos exposure
contributed to the severity of his COPD." The VHA
consultant also observed that after accumulating a 45 pack
year smoking history by 2003, the degree of obstructive
defect shown was mild and commensurate with or even less than
what one would expect for that level of cigarette use.
Noting the March 2004 VA examiner's remarks about the
veteran's reduction in smoking not helping his symptoms, he
commented, "There is no consistent correlation between
smoking cessation and reduction in the symptoms of dyspnea."
C. Legal Criteria and Analysis
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
Service connection also may be granted for any disease
initially diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disability was incurred in service. 38 C.F.R. § 3.303(d).
To prevail on the issue of service connection, there must be
medical evidence of a current disability; medical or, in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and medical evidence
of a nexus between the claimed in-service disease or injury
and the present disease or injury. See Hickson v. West, 12
Vet. App. 247 (1999). The determination as to whether these
requirements are met is based on an analysis of all the
evidence of record and an evaluation of its credibility and
probative value. Baldwin v. West, 13 Vet. App. 1 (1999);
38 C.F.R. § 3.303(a).
With respect to claims involving asbestos exposure, there is
no specific statutory guidance, nor has the Secretary of VA
promulgated any regulations in regard to such claims.
However, VA has issued a circular on asbestos-related
diseases, which has been incorporated into the VA
Adjudication Procedure Manual. See DVB CIRCULAR 21-88-8,
Asbestos-Related Diseases (May 11, 1988); VA Adjudication
Procedure Manual Rewrite M21-1MR, IV.ii.2.C.9. The
provisions stipulate that VA must determine whether military
records demonstrate evidence of asbestos exposure during
service, develop whether there was pre-service and/or
postservice occupational and other asbestos exposure, and
determine whether there is a relationship between asbestos
exposer and the claimed disease.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the
evidence is assembled, VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event, or
whether a fair preponderance of the evidence is against the
claim, in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).
COPD has been diagnosed. Because the veteran served aboard
U.S. Coast Guard vessels it is likely that his shipboard
duties involved some level of exposure to asbestos. What he
must still show to establish service connection for COPD is
that such disability is related to his service/asbestos
exposure therein. The record does not show that there is a
nexus between the veteran's diagnosed COPD and his service.
Significantly, the veteran's STRs, including his service
separation examination report do not mention COPD (or for
that matter any respiratory disability). Accordingly,
service connection for COPD on the basis that such disability
became manifest in service and persisted is not warranted.
Furthermore, the record is silent for any competent (medical)
evidence that relates the veteran's current COPD to his
active duty service, to include asbestos exposure therein.
The March 2004 VA examination report, without stating whether
the veteran's COPD was related to asbestos exposure in
service, noted only that the veteran seemed to have
"considerably more" obstructive disease than his smoking
history would indicate. To resolve the matter of the
etiology of the veteran's COPD, the Board sought a VHA
advisory opinion from a pulmonologist. In September 2008 a
VHA specialist noted that the veteran had only a "mild
obstructive defect" and opined that it was "highly
unlikely" that the veteran's COPD was related to asbestos
exposure in service. He noted that the veteran's mild
obstructive defect was "commensurate with or even less
than" what one would expect for someone with his history of
cigarette use. As there is no competent evidence to the
contrary, and given the recognized expertise of the opinion
provider, references to evidence which reflect familiarity
with the entire record, and the explanation of the rationale,
the Board finds the VHA opinion persuasive.
The veteran's own statements relating his COPD to his
service, to include exposure to asbestos therein, are not
competent evidence, as he is a layperson, and lacks the
training to opine regarding medical etiology. See Espiritu
v. Derwinski, 2 Vet. App. 492, 495 (1992).
The preponderance of the evidence is against a finding of a
nexus between the veteran's COPD and his service/asbestos
exposure therein. Consequently, the preponderance of the
evidence is against this claim. In such a situation, the
benefit of the doubt doctrine does not apply and the claim
must be denied.
ORDER
Service connection for COPD, to include as due to asbestos
exposure, is denied.
REMAND
The veteran alleges that he has asbestosis other asbestos-
related disease as a result of his exposure to asbestos in
service. As noted above, on March 2004 VA examination, COPD,
heavy asbestos exposure, and diminishing smoking disorder
were diagnosed. The examiner stated, "[The veteran] was
heavily exposed to asbestos in the Coast Guard and, while
there are no current diagnostic markers to confirm
asbestosis, it is entirely likely that this is beginning to
play a role on his lung disease. If that were the case, it
will become steadily more apparent over the next 5-10 years
and be more easily diagnosed at some point if calcifications
appear along the pleural margins."
In a September 2008, a consulting VHA physician opined that
based upon the record there was no objective evidence
available to support a diagnosis of asbestosis or an
asbestos-related disease, such as pleural or pulmonary
parenchymal disease. "However the data are insufficient to
definitely determine whether he has any pulmonary function
abnormalities that could be attributed to asbestos. One
would need to do a CT scan of the chest to definitely
evaluate for asbestos related pleural or parenchymal disease.
A DLco would also provide additional useful information about
a possible parenchymal component."
As the September 2008 VHA advisory opinion has indicated that
further diagnostic studies are necessary to definitively
establish whether the veteran has any pulmonary function
abnormality that could be attributed to asbestos, it is the
Board's opinion that further development of the medical
evidence is necessary.
Accordingly, the case is REMANDED for the following:
1. The RO should arrange for the
veteran to be examined by a pulmonologist
to determine whether he has any pulmonary
function abnormality (other than COPD)
that could be attributed to asbestos and,
if so, to identify such disease and opine
regarding the likelihood (very likely or
as likely as not (50 % or better
probability) or highly unlikely (less than
50 %)) that it is indeed causally related
to the veteran's exposure to asbestos in
service. The examiner must review the
veteran's claims file in conjunction with
any such examination. Any tests or
studies deemed necessary must be completed
(and should specifically include the CT
scan of the chest and the DLCO pulmonary
function study suggested by the VHA
consultant in September 2008). The
examiner should explain the rationale for
all opinions.
2. The RO should then re-adjudicate
the matter of entitlement to service
connection for asbestosis and/or
disability (other than COPD) related to
asbestos exposure. If it remains denied,
the RO should issue an appropriate
supplemental statement of the case and
afford the veteran and his representative
the opportunity to respond. The case
should then be returned to the Board, if
in order, for further review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999). This claim must be
afforded expeditious treatment. The law requires that all
claims that are remanded by the Board for additional
development or other appropriate action must be handled in an
expeditious manner.
_________________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs